Can employers force employees to get a COVID-19 vaccine?

The start of the rollout of COVID-19 vaccines in Canada has brought a wave of optimism and hope that this marks the beginning of the end of the coronavirus pandemic.

But the pending arrival of COVID-19 vaccine also raises questions about whether employers can mandate that their workers be vaccinated.

According to labour lawyers, employers cannot force their employees to get vaccinated. But there are still areas of uncertainty, including about whether companies can require that customers provide proof of vaccination before entering a workspace.

“Generally, the rule that employers have to follow is that no, they cannot require employees to get vaccinated,” Lior Samfiru, an employment lawyer and founding partner of Samfiru Tumarkin LLP.

“Not only that, they cannot prevent employees from having access to the workplace if they haven’t been vaccinated, and they cannot refuse to hire employees that have not been vaccinated. Doing that would absolutely be considered a human rights violation.”

Vaccines won’t be mandated by governments

While Samfiru said there are some situations where vaccination could be made mandatory – for example, for those who provide care to individuals with compromised immune systems – those are “very, very rare.”

“For the vast majority of employers, any considerations about workplace rights when it comes to vaccines or differentiating between people with vaccines and those that have not been vaccinated would be illegal and a human rights violation,” he said.

Governments in Canada have so far said they will not make the COVID-19 vaccine mandatory. However, people who are not vaccinated could face some restrictions in certain regions. For example, Ontario Health Minister Christine Elliot said this week that some activities – including travel and access to communal spaces like cinemas – could be restricted for those who opt not to get immunized. She said the province will provide residents who have received the vaccination with a document to prove it.

Still, companies should be prepared to deal with exceptions, says Jason Wong, an employment lawyer at Wong Employment Law.

“Under human rights laws, service providers must accommodate customers who cannot be vaccinated because of a recognized human rights ground, such as religion or disability,” he said.

“If a customer does not have a legal basis that prevents them from being vaccinated, a private company could deny service. It would be like ‘no shoes, no shirt, no vaccine, no service’.”

Ryan Conlin, an employment lawyer with Stringer LLP, said that there will likely need to be clarity from the government in the form of legislation to address additional questions, including whether businesses can make vaccinations a condition of employment.

“If there is no law from the government, it becomes a very case-by-case scenario, and an employer is almost damned if they do, damned if they don’t,” he said.

“You have a situation when someone (may say), ‘I don’t want a vaccine’ and other people say ‘I’m not comfortable coming in unless everybody’s vaccinated’... it’s an evolving issue.”

Further complicating the issue is the fact that there is limited relevant case law, Conlin says. Most cases are focused on influenza vaccines and specific to health care settings, particularly hospitals.

“We have very little (case law) outside of the health care system,” he said.

“And this is an unprecedented situation, obviously. It’s a once-in-a-century pandemic, so I’m not sure that even some of the older decisions that are out there are really all that helpful.”

With files from the Canadian Press

Alicja Siekierska is a senior reporter at Yahoo Finance Canada. Follow her on Twitter @alicjawithaj.

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